Wight v. Dolenty

162 P. 387 | Mont. | 1917

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

The plaintiffs are attorneys, and the defendant is the executrix of the last will of W. B. Dolenty, deceased. This action was brought to recover a balance alleged to be due for professional services rendered in connection with the administration of the Dolenty estate and for expenses incurred in the performance of such services. It is admitted that plaintiffs performed the services at the special instance and request of the defendant, but it is alleged “that it was understood and agreed between the plaintiffs and herself that the plaintiffs should look to, and be paid for, their said services by the said estate of W. B. Dolenty, deceased, and not by the defendant individually.” This allegation was traversed by the reply. The plaintiffs prevailed in the trial court, and defendant appealed.

[1] In his brief, counsel for appellant states that: “The only question presented is whether, under the facts of the case, she [appellant] can be held individually liable for the value of said services.” Counsel concedes that it is the general rule that for services performed by attorneys for the benefit of an estate, at the special instance and request of the personal representative of the estate, such personal representative is individually liable;

[2] but it is insisted that the rule is not inflexible, and •that by agreement between the attorneys and the personal representative, individual liability may be obviated, and that in the instant case such result was achieved.

We shall not stop to determine whether it was necessary for defendant to allege that the agreement pleaded was founded upon an adequate consideration, or whether the parties by such an agreement could bind the Dolenty estate to pay for the services rendered. For the purposes of these appeals only, we may assume that a valid contract was pleaded. The plaintiffs made out a prima facie case, and the burden was upon the defendant to show that the special agreement relied upon was actually entered into.

The defendant’s own testimony fails altogether to sustain the allegation of her pleading. The evidence to which our attention is directed by appellant’s brief, when considered in the light •most favorable to defendant, does not go further than to indicate that the parties did agree that defendant should advance money to plaintiffs from time to time, and that plaintiffs should wait for any balance due them until the conclusion of the administration; but this is not the agreement pleaded, and proof of this agreement does not tend to prove that the agreement relied upon in the answer was ever in the contemplation of the parties at any time.

Because of defendant’s failure to prove the existence of the agreement pleaded, the action of the trial court in withdrawing the special defense from the jury meets with our approval. The judgment and order denying a new trial are affirmed.

Affirmed.

Mr. Chief Justice Brantxy and Mr. Justice Sanner concur.